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Wednesday, May 17, 2017

Suspects with military links feature in a number of ongoing
investigations into crimes and human rights violations committed in Sri
Lanka’s post-war period. The Criminal Investigation Department’s report
in Lasantha Wickramatunga’s murder investigation detailing military-run ‘death squads’,
and the alleged involvement of military intelligence in the
disappearance of Prageeth Eknaligoda are examples of this tendency.
Meanwhile, recent allegations that 134 Sri Lankan peacekeepers sexually
abused children in Haiti exemplify the problem of military indiscipline in the country.

In this context, there is a need for a process to distinguish between
perpetrators of crimes, and those within the military who conducted
themselves lawfully and professionally during the war and its aftermath.
This process is crucial for post-war peace, as the failure to separate
criminals from those who abide by the law fosters a culture of impunity,
and brings the entire military apparatus to disrepute in the eyes of
victims. Prosecution of perpetrators is the most obvious and
straightforward means of ensuring accountability. As Sri Lanka grapples
with questions of accountability, the viability of lustration will no
doubt be considered.

This article discusses the viability of lustration as a means of
advancing accountability in post-war Sri Lanka. It examines this
question through a historical lens, based on the experience in Europe.
This article does not seek to promote or refute the suitability of
lustration; it instead invites policymakers and human rights
practitioners in Sri Lanka to reflect on the historical lessons that can
be learnt from lustration policies adopted elsewhere.

What is lustration?

The term ‘lustration’ is usually associated with policies adopted by
newly independent states across Eastern Europe in the 1990s following
the collapse of the Soviet Union. The term ‘lustration’ comes from the
Latin word lustratio, which means ‘purification by sacrifice’.
Thus it was viewed as a cleansing process for former Soviet states to
remodel their societies on the basis of liberal democratic principles
such free speech, accountability, and the rule of law.

The term lustration has no strict definition. Susanne Karstedt defines
lustration as involving criminal proceedings against elites and public
officials from the previous regime, and mass screening procedures to
identify collaborators from the middle and lower ranks of the hierarchy.[i] Cynthia
Horne and Monika Nalepa view lustration as a form of vetting, employed
to remove or ban perpetrators from participation in the
post-authoritarian state.[ii] Lustration,
by nature, involves a concerted and overarching state policy.
Therefore, isolated disciplinary action or prosecution of specific
former regime members do not fall within the definition of lustration.

In practice, policies involving lustration have differed vastly from
country to country. For instance, in post-communist Germany, lustration
involved: (1) criminal proceedings against Erich Honecker, the former
head of state, and his elite supporters; (2) prosecutions against border
guards who killed or injured refugees attempting to escape East
Germany; (3) dismissals of Socialist Unity Party officials; and (d)
prosecutions of State Security Agency (STASI) officials, collaborators
and informants.[iii] Thus
a combination of criminal and non-criminal justice procedures were
adopted within the remit of lustration policies in post-communist
Germany. Yet, in most other experiences, lustration has only included
measures of a non-criminal justice nature, such as vetting; dismissals;
public confessions; the removal of officials from public and economic
life; and income and pension cuts.

The European experience

The European experience with respect to lustration points to four
important lessons. First, lustration has a tendency to be overbroad in
scope. Lustration laws can extend beyond the police and military, and be
used against the media and academia. For example, Poland introduced a
new lustration law in 2007, which drastically altered the scope of its
original Lustration Act of 1997. The number of people subject to
vetting would have increased from
around 36,000 people to 400,000-700,000 people. Moreover, the new law
called for the vetting of journalists, academics and actors who may have
been influential, but certainly did not drive policy in communist
Poland. Fortunately, Poland’s constitutional court declared the relevant
articles of the new law unconstitutional.

Second, lustration often lacks credibility due to its reliance on
incomplete information. By the time East Germany collapsed in 1989, the
STASI had amassed files on approximately four million East Germans, and a
further two million West Germans. The declassification of these secret
files – compiled by secret police with the aid of collaborators and
informants – represented a central tenet of lustration in post-communist
Germany. However, in the last days of the security state, East German
officials made it a priority to destroy evidence, burning and shredding what they could before their offices were occupied.

According to Horne,
informants and secret police agents had incentives to falsify
information. Such incentives included rewards for providing information,
and the need to protect friends and family who were under suspicion by
the security state. In this context, the veracity of the information
contained in the files, as well as the incomplete documentation due to
conscientious efforts to destroy evidence, seriously skewed findings.

Third, poorly planned and executed lustration measures have resulted in
unemployment and further criminality, which has exacerbated conflict
rather than promoted peace. In Ukraine, the 2014 lustration law banned
certain military and police actors from occupying their positions for a
period of ten years, resulting in significant unemployment. The United Nations has cautioned against the
mass removal of public officials – particularly military personnel –
who are unable to find alternative jobs, as they ‘constitute a
significant security risk and represent a threat to the transition
itself.’ Meanwhile, even outside Europe, in post-Ba’athist Iraq,
indiscriminate lustration measures involving demilitarisation resulted
in large-scale unemployment and political violence. Following the 2003
Iraq War, the dismantling of the military apparatus under the guise of
lustration drove a number of disillusioned military personnel towards extremist groups such as the Islamic State.

Finally, lustration is often associated with political revenge. The 1996 Resolution of
the Council of Europe stipulates that ‘the key to peaceful coexistence
and a successful transition process lies in striking the delicate
balance of providing justice without seeking revenge.’ However, in
multiple states across Eastern Europe, lustration measures were used as a
means of exacting political revenge and pursuing personal vendettas.
Following the screening of
Czechoslovakia’s military counterintelligence service, only 117 out of
7,000 members retained their positions due to their links with the
ousted communist regime.

Furthermore, in post-communist Albania, a lustration Verification
Committee (made up of the ruling Democratic Party members) blocked 139
members of opposition parties from participating in elections.[iv] More recently in Turkey, following a failed coup in July 2016, President Erdogan dismissed 50,000
civil servants, in addition to military officials, academics, and
judges suspected of sympathising with opposition groups. Lustration can
therefore be used to enable witch-hunts and scapegoating, rather than
genuine accountability. Such politically motivated lustration is likely
to perpetuate a cycle of conflict, and impede meaningful peace and
reconciliation.

Conclusion: Lustration in Sri Lanka?

Lustration measures are not novel to Sri Lanka. In fact, former head of state Sirimavo Bandaranaike was subjected to civic disabilities following
her election defeat in 1977. She was removed from Parliament, and
prohibited from voting or contesting at elections for a period of seven
years. The question of lustration may become relevant again as post-war
Sri Lanka attempts to advance accountability within its military
apparatus.

The European experience, however, points to several risks. First,
lustration policies meant for the military could later be expanded to
target media personnel and academics. Second, lustration based on
incomplete information could seriously jeopardise the credibility of the
process. Third, the large-scale and indiscriminate purging of lower
ranking military personnel in Sri Lanka could result in mass
unemployment, criminality and violence. Finally, lustration used purely
for political revenge could be perceived as witch-hunting and
scapegoating, and undermine peace and accountability. If Sri Lanka
chooses to enter the realm of lustration to address military impunity,
policymakers and human rights practitioners must consider these risks.
Misguided or mismanaged lustration could fail to advance accountability,
and even impede peace and reconciliation.

Shamara Wettimuny has an MSc and BSc in International Relations and
History from the London School of Economics. She currently works at
Verité Research, a Colombo-based think tank. The views expressed in this
article are her own.